Labor Relations Update

NLRB Ditches Effort To Expand Weingarten Rights to Non-Union Workplaces

Since the change in Presidential administrations, the main topic has turned to what rules will a newly constituted NLRB change?  With the addition of Marvin E. Kaplan the Board now has four members, which makes undoing some of the past few years a difficult task.  But a four member Board also means there likely will be no further expansion of the law.  Four members, split evenly between two different political parties and differing viewpoints means little may occur before the fifth member is confirmed sometime this Fall.

One can see evidence that this pendulum is in the process of swinging back in a recent Advice Memorandum released on September 7, 2017.

In General Electric, Cases 6-CA-176001 et al., Adv. Mem. dated December 1, 2016, Advice directed a Region to issue a complete on two cases “as vehicles to urge the Board to extend Weingarten rights to unrepresented employees and find that the Employer violated Section 8(a)(1)” by forcing an employee to submit to an investigatory interview without the assistance of a coworker and by “forcing another employee to submit to an investigatory interview in the presence of an anti-Union employee witness unilaterally designated by the Employer.”  At first blush, this sounds like it could represent a big change.  Weingarten rights currently apply only to unionized employees, and so these “vehicles” could theoretically drive the Board to apply the rights to the 93% (give or take) of the private sector that is not unionized.  You can hear Human Resources managers already saying, “you mean we might have to let any employee have a representative any time we want to have a discussion that might lead to discipline?  The logistics of that are too difficult to imagine.”

Except this Advice Memorandum represents no such thing for the simple reason that the Board is not in the habit of sharing its litigation strategy.  The Division of Advice is the internal think tank of the NLRB.  Its lawyers ponder closely the nuances of the Act, the legislative history of the law, and the Board’s vast body of cases to assist the General Counsel with situations not addressed by current law.  Advice also provides support for complex situations.  Also, as we can see by this Memorandum, the Division also helps the General Counsel look for ways to change the law in a manner consistent with the direction the General Counsel would like to see the Board take. The product of Advice is a so-called Advice Memorandum, which is essentially a document setting forth the reasons why complaint should issue, or not.  When an Advice Memorandum is released to the public the case is most certainly over because the government is not in the habit of sharing its litigation strategy prior to trial.  We have previously discussed the release of Advice Memoranda when the Board wants to let the world know how it addressed certain situations, like when it dismissed a case involving the discharge of an employee over a social media posting.

In these cases, a review of the Board’s docket shows that while trial was scheduled for earlier this year, the cases ultimately were closed based on “withdrawal” which most certainly means the objective of the Memorandum to expand Weingarten rights was deemed no longer viable given the change in the make-up of the Board.

It is an interesting read, however for three reasons.  First, the Advice Memorandum sets forth the history of how Weingarten rights have shifted from unionized to both union and non-union and back.  Second, it contains a good collection of NLRB Weingarten cases.  Third, while the Memorandum explains the reason why these particular charges were worth taking a shot at expanding the law again.  In the case the union “has never been certified or recognized” as the exclusive bargaining representative.  Instead, the union has

functioned at the plant as a pre-majority labor organization since it was formed by a committee of workers in the fall of 2012.  The Union has a constitution and was chartered by the National UE in August 2012.  Its stated mission includes addressing issues that impact the interests of the entire workforce such as fair and consistent treatment workers by the Employer, equal pay for equal work, and protecting worker benefits.  The Union has elected officers, including a network of trained stewards.  Union members pay dues, and the Union holds regular membership meetings and engages in organizing drives and leafleting.  The Union advises its members regarding avenues that the Employer has in place to address complaints and disciplinary issues.

While the employer does not recognize the union it has granted limited access of the union to its facility for purposes of meeting with employees.  The union also has some ability to post literature.

Advice’s analysis does not contain any earth shattering revelation, like “we discovered a heretofore unseen footnote in the Weingarten decision that says it should be applied to non-union workforces.”  Rather, Advice focuses on the policy considerations behind Weingarten and notes there are “unique factors” present in the set of facts that make a change in the law more “compelling.”  Those unique factors include, of course, the presence of a minority union with a “network of trained stewards who are subject to the [Union’s] constitution and bylaws requiring fair representation of their coworkers.”

Why publish this memorandum now?  One can never know for sure.  However, it is possible the outgoing General Counsel wanted to signal to the public that while there may be a change in direction of the Board, there are ways to keep up the fight:  a minority union being one of them.  Not as interesting as analyzing whether an employer’s search of an employee’s car constitutes an investigatory interview, but pretty revealing nonetheless.

NLRB: Employer’s Side Letter Explaining NLRB Notice Breached Settlement Agreement and Warranted Default Judgment

One of the fundamental pillars of any remedy doled out by the NLRB is the agency’s  requirement that the employer (or union) post a “Notice to Employees,” a bright blue poster detailing the misdeeds of the charged party.  Such a Notice is required to be posted as a result of a finding of an unfair labor practice after trial; the Notice posting is also required through any Board settlement agreement.  The content of the Notice always first sets forth employee rights (including the right to refrain from protected activity).  After the employee rights comes the paragraphs explaining what the posting entity WILL or WILL NOT do, and explains any required affirmative actions such as the removal discipline or rescinding an unlawful rule.  The Notice itself says that it may not be defaced or altered in any way.

It is common in all sorts of litigation for a company to communicate about settlement of a dispute:  that it entered into a settlement “for the good of the business,”and often asserting that it  did “nothing wrong” and that there had been “no finding” of wrongdoing.  In other words, the company puts its spin on what happened so that it can (try) to control the narrative.

But what if an employer wants to put its spin communication right next to the NLRB’s Notice to Employees?  Board case law has long held that such side postings are improper if the communication “detracts” from the agency’s Notice.  If the employer is in noncompliance there most certainly will be some further litigation.  Does such an employer posting also constitute a breach of an NLRB settlement agreement? If so, does such a breach warrant the entry of a default judgment pursuant to the default provisions of the agreement?

In Outokumpo Stainless USA LLC, 365 NLRB No. 127 (September 7, 2017) the Board answered both questions in the affirmative.  All three members of the Board found that an employer’s side letter posted next to the agency’s Notice to Employees, constituted breach of an informal Board settlement agreement.  A two member Board majority also determined that such breach warranted a default judgment under the agency’s much debated default language.

Background

A union filed a petition seeking to represent a group of employees.  The campaign was hard fought.  Six days before the election the union filed unfair labor practice charges, which according to Board policy resulted in the election being blocked until the charges could be investigated and resolved.  There were many separate alleged violations of the Act including surveillance, impression of surveillance, threats, unlawful rules and the discipline of employees pursuant to overbroad rules.

The Parties Enter into an Informal Settlement Agreement

In order to resolve the charges short of litigation the parties agreed to a Board settlement agreement to remedy most of the allegations.  The employer agreed to rescind the discipline and the overbroad rules, and of course, the employer agreed to post a Notice to Employees at its facility and on its intranet.

The settlement agreement contained the (now standard) default language describing the consequences of noncompliance.  That default language, among other things, stated that “in the case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party, the Regional Director will issue a complaint that will include the allegations [that are subject of the agreement].”  The default language further provided that in the event of noncompliance the breaching party waived its right to file an answer and all allegations will be deemed admitted.  The Board then, “without necessity of trial or any other proceeding,” would find all allegations to be true and would provide an order and remedy for same.

The Employer Posts its Own Communication about the Charges Before Posting the Notice to Employees

The employer rescinded the rules and discipline.  The employer also posted the Notice to Employees on its intranet and on its bulletin board.  Before doing so, however, the employer emailed its employees and posted on its bulletin board a lengthy letter in response to the unfair labor practice allegations.  This letter stated the union filed the charges “just prior” to the election in order to prevent an election.  The letter blamed the union for preventing the employees from voting.  The letter stated the employer did nothing wrong and that the Board had not found that it violated any laws.  The letter stated the Board’s notice essentially was the complete remedy and that the employer was not required to pay any “fines, penalties, or monetary requirements.”

Region Tells Employer to Remove Letter, Employer Refuses

The Region notified the employer that its letter constituted noncompliance with the settlement agreement and instructed the employer to remove the letter and post the Notice to Employees for an additional 60 days.  The employer refused and the Region offered to “hold off” on the employer’s communication if the employer agreed to post the Board’s Notice for an additional 60 days.  Again, the employer refused.  The Region then notified the employer that its side letter constituted a breach of the settlement and issued a complaint alleging the employer violated Section 8(a)(1) of the Act in all the ways set forth in the original settlement agreement.

The employer filed an answer. The matter was submitted to an Administrative Law Judge who concluded that the employer’s letter breached the settlement agreement and that a default judgment was appropriate.  The employer appealed.

Board Holds Letter Constitutes a Breach of Settlement Agreement and Warrants A Default Judgment

The Board first addressed the issue of whether the employer’s letter constituted noncompliance with the agreement.  The Board held:

[Noncompliance occurs] where the communication attempts to ‘minimize the effect of the Board’s notice’ and ‘suggests to employees that the Board’s notice is being posted as a mere formality and that Respondent’s true sentiments are to be found in its own notice, not the Board’s.’  Bangor Plastics Inc., 156 NLRB 1165, 1167 (1966), enf. denied 392 F.2d 772 (6th Cir. 1967).  As discussed in more detail in the judge’s decision, the [employer’s] letter was strikingly similar to the letter distributed to employees in Gould, Inc., 260 NLRB 54 (1982).  In Gould as here, the letter stressed that the respondent had not been found guilty of any violation of the law.  260 NLRB at 57.  In Gould as here, the respondent falsely suggested that the posting of a notice was the only action it was required to undertake pursuant to the settlement agreement. Id.  In Gould, as here, the respondent additionally sought to minimize the effect of the notice by distributing its ‘spin’ on the notice before the notice itself was posted. Id. at 56-57; . . . Finally, in Gould as here, respondent used the letter to blame the union for election delays.

A two member Board majority (Pearce and McFerran) next found that the employer’s noncompliance warranted a default judgment.  The Board noted the employer’s letter violated the settlement agreement in “two ways.”  First, the mere posting of such a letter detracted from the Notice and has long been held to constitute noncompliance.  Second,  “insofar as the settlement specifically required the Respondent to post the parties’ agreed-upon notice, that provision must be construed (particularly in light of Board law) as requiring the posting of that notice and nothing that detracts from that notice.”  The Board noted that the employer’s side letter was not an “element” of the parties’ settlement but was a “unilateral act that tended to frustrate performance of their settlement agreement.” The Board majority addressed due process concerns raised by the dissent noting that, “[i]n agreeing to [the default] provision, the Respondent accepted the possibility that the Board would find noncompliance sufficient to trigger the default provisions.”

The Board majority proceeded to strike the employer’s answer to the complaint except where it had to do with noncompliance, which according to the default language was the only issue that could be contested.  By issuing a default judgment the Board found that the employer had committed multiple unfair labor practices as alleged in the complaint.  The Board then amended the remedy to specifically include language prohibiting the posting of any “letters or notices to employees that modify, alter, or undermine the effectiveness of the official notices.”

Dissent Finds Fault in Default

Chairman Miscimarra agreed that the employer’s action breached the settlement agreement which the Regional Director could then withdraw.  The Chairman, however, took issue with whether the Board can or should issue a default judgment.  Miscimarra noted that prior to the Board majority’s decision “the Board has never held that a side letter warrants entry of a default judgment, which precludes the [employer] from raising any defenses against the Union’s unfair labor practice allegations.”  The Chairman raised a number of reasons as to why default should not issue.  These included constitutional due process concerns about finding an unfair labor practice without allowing the employer to defend itself..  The Chairman also raised the fact that it was not at all clear to him that the default language clearly and unmistakably waived the employer’s right to raise a defense especially considering the Board majority wrote into the agreement a duty to not post a side notice.  Finally, as the Chairman explained what he viewed as a “profound” problem with the Board majority’s ruling:

it prevents the Board itself from deciding the merits of the unfair labor practice allegations.  At this time, the Board does not have a record upon which it may decide the allegations on their merits.  The Charging Party alleged that the Respondent committed various unfair labor practices.  The Respondent’s side notice alleged that the Charging Party’s true purpose in filing the charges was not to seek redress  but to ‘block’ the election.  By entering default judgment rather than proceeding to a hearing, my colleagues preclude a determination of whether the Charging Party’s allegations have merit.

Takeaways

This case illustrates a few important points about NLRB practice and procedure.  First, although the Board majority noted that the employer “agreed” to the default language, the fact is that the General Counsel rarely allows alteration to the boilerplate language in its settlement agreement.  So, a party that wants to resolve an unfair labor practice charge in the vast majority of cases must sign a an agreement containing the default language.  This often will be the only way to settle the matter.  There rarely is much (or any) true negotiation over the point.  Unless and until the Board changes its position on the default language, the employer should carefully consider whether compliance involves elements that could be subject to dispute because such disputes could result in a default.  While many Board agents claim that the default language has “never” or “rarely” been invoked, one can see from this case that the General Counsel will not hesitate to invoke the default language to deprive the employer of an opportunity to raise defenses.  In  cases where compliance could be contested it may be better to litigate.

Second, if the employer believes the best course of action is to enter into the settlement agreement containing default language it has to be careful in its dealings with the agency in the event there are issues with compliance.  From the Board’s recitation it certainly sounds as though the Region was trying hard to avoid default in this case and its efforts were rebuffed. While the employer stated it wanted to get to an election its actions actually were preventing it because there was no way the Board was going to hold an election while remedial issues were pending.  Regardless of whether the charges are blocking an election, now employers must worry that any notice of noncompliance could result in a default judgment.

Finally, as Chairman Miscimarra noted, the employer merely was stating its view that the union had deliberately blocked the election.  As anyone who has experienced the NLRB election process knows, the union has almost complete unilateral power to block an election if it doesn’t believe the vote is going to go its way.  Sometimes the charges have merit and sometimes they do not.  Employers have to be very careful in shifting the blame for an action (even if it may be true) to the union especially if the Board is involved through the filing of unfair labor practice charges.

NLRB’s Enforcement of Secondary Boycott Restrictions Does Not Place Union Agent in Involuntary Servitude Nor Does It Encroach on Union’s Religious Freedom

Labor Day is upon us.  It is fitting, therefore, to enter the weekend with another case that exemplifies the bizarre world of labor relations.  Like the case of the human resource manager who turned on his employer, or the nurse who felt her union activity protected her in screaming confrontations, we continue to see new odd and amusing situations.  This one involving Picket Line Etiquette.

In Int’l Assn of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 229, 365 NLRB No. 126 (August 30, 2017) the Board was confronted with a fairly simple situation, an allegation that a union was attempting to coerce a neutral employer in connection with a labor dispute.  Not many of these secondary boycott cases get tried because if a union does it enough it can be faced with ever increasing NLRB oversight and sometimes even monetary damages.  Here, the dispute centered over the construction of a parking garage. The charging party (“Neutral”) furnished and installed the reinforcing steel.  Neutral was signatory with the union.  The union had a dispute with another contractor (“Primary”) performing concrete work at the site.

The union began picketing the site in its dispute with Primary, the signs lawfully stated that Primary was “Not Paying Area Standard Wages.”  The picketing did not have the desired impact and so the union’s business agent sent a series of texts to Neutral’s employees who were members of the union.  One text had a symbol of a picket sign which stated “Friends Don’t Let Friends Cross Picket Lines.”  The text also contained a link to a union webpage document entitled “Picket Line Etiquette” which stated

Labor’s first commandment:
“THOU SHALL NOT CROSS THE LINE”
A good Union member is EXTREMELY CAREFUL when confronted with a picket line situation
When a picket line is established on a job where you are working:
You MAY LEAVE.  You DO NOT TALK.
You READ the PICKET SIGN as you leave
You DO NOT hang around near the job
You know that ONCE A PICKET LINE IS ESTABLISHED, your Business Agents and other Union Officials
are legally gagged and handcuffed from giving advice pertaining to THAT JOB.  they can only tell you if the
Picket Line is AUTHORIZED.
A good union member knows their rights:
You have the right not to work behind ANY Picket Line
You have the right to decide for yourself whether to walk off a job being picketed.
You understand that YOUR TRADE may be UNDER ATTACK next and you would want everyone’s support.

BE PREPARED AHEAD OF TIME HOW TO REACT TO PICKET LINES

Under the Section 8(b)(4)(i)(B) of the Act a violation occurs by picketing or activity that induces or encourages the employees of a secondary employer to cease doing business with the primary employer.  The Board has held that in evaluating whether inducement or encouragement occurs the statements made by union agents directly to Neutral employees if such statements would reasonably understood by the employees to be a “signal” or “request” to stop working.

There was very little question the text messages and the Picket Line Etiquette document was inducement or encouragement to engage in a work stoppage.  Indeed, the union stipulated to that fact.  So, why contest the case?  Because the union claimed the Act could not be enforced for three reasons.

First, under First Amendment law the Act’s prohibition of appeals to employees is too broad.  The ALJ noted that these “arguments, although eloquently presented, are rejected…it must be found that the [Supreme] Court” in 1951 found that outlawing secondary pressure does not violate the First Amendment.  The union also asserted that Section 8(c) of the Act protects the union agent’s requests because there was no promise of benefit or threat of reprisal.  The ALJ summarily rejected this argument.

Second, the union claimed that the secondary boycott provisions of the Act violated the Thirteenth Amendment of the United States Constitution.  That amendment abolished slavery and involuntary servitude in 1865. The ALJ found, “[o]n this record, however, no evidence of involuntary servitude warranting application of the Thirteenth Amendment exists.”  It is interesting to wonder whether such a record could exist when evaluating statements.

Third, as if the previous defenses were not a reach, the union shot for the moon and claimed its communications were protected by the Religious Freedom Restoration Act, which provides that the government may not “substantially burden” the free exercise of religion. The RFPA does not require the exercise of any particular religion only that the claimant engage in “any exercise of religion.”   The union claimed its efforts to protect work for its members was a sincerely held belief that could not be abridged.  The ALJ gave short shrift to this argument as well, noting that the union had failed to show the Act posed a “substantial burden.”

The Board adopted the ALJ’s finding of a violation without comment.

Of course, employers constantly make the free speech arguments, especially when defending against he NLRB’s handbook allegations and other efforts by the Board to regulate what is said in the workplace.  So,in that respect the union’s arguments were not that far off the mark.  This may be the first time that any party, employer or union, has made an involuntary servitude argument against the NLRB.  The same goes for the alleged encroachment on religious freedom. Those arguments are one (two, actually) for the books.  It is good to see that “Picket Line Etiquette” exists. In the immortal words of Emily Post, “Nothing is less important than which fork you use.  Etiquette is the science of living.  It embraces everything.  It is ethics.  It is honor.”

 

NLRB’s Attempt To Incrementally Expand Weingarten Rights Rebuffed By Federal Appeals Court

The NLRB suffered a setback this week when its interpretation of Weingarten rights was rebuffed by the D.C. Court of Appeals.  This is the same court that recently declared the agency was acting more as an “advocate than adjudicator” in a case involving access to an employer’s premises.

Weingarten, which derives its name from the United States Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), is one of those fundamental knowledge areas about which all practitioners in labor relations must understand.  Weingarten applies only to union represented employees and the “right” is that the employee must be allowed to bring union representation to an employer interview if he/she reasonably believes the interview might result in discipline.  Simple?  Yes, in theory.  In practice, however, the application of Weingarten sometimes has proved difficult as union representatives urge the widest possible application while employers seek to narrow its interpretation.  This difference of perception, if not interpretation, has led to a number of litigated disputes.  For instance, can the union assert representation on behalf of the employee or must the employee assert it? Does the employee get to pick the particular union representative?  What if the chosen union representative is unavailable during times the employer wants to conduct the interview?  What is the role of the union representative?  Are they suppose to be an advocate or merely a witness?  Does a Weingarten violation overturn any discipline that is issued?  One union even argued that a search of an employee’s vehicle constituted an “interview” which triggered Weingarten.  These issues, and others, have vexed employers (and labor representatives) for decades and there is a great deal of Board law interpreting Weingarten in myriad situations.

Sometimes even the Board’s interpretation is not correct.

Midwest Division-MMC, LLC v. NLRB, No. 15-1312 (D.C. Cir. August 18, 2017) involved a Kansas hospital where the nurses were represented by a union.  Under Kansas state law, hospitals must establish an internal peer-review program to monitor the level of care given by professionals to patients.  The purpose of the committee is to inquire into alleged violations of the standard of care by the hospital’s nurses.  Serious breaches of the standard of care are reported to the state licensing agency.  If the state licensing agency –called the Nursing Board– finds that the nurse has violated the standard of care in a serious manner (i.e., one that might result in a “reasonable probability of causing injury to a patient”), the Nursing Board can strip the nurse of his/her license.

Background Facts

The hospital employer’s peer review committee sent letters to two nurses alleging that they had “exhibited unprofessional conduct as defined by the Kansas Nurse Practice Act.” The letters stated that the nurses’ “conduct preliminarily has been determined to be a Standard of Care Level 4:  grounds for disciplinary action.”  The letters stated each nurse would have “an opportunity to address the Peer Review Committtee regarding any potential reportable incident prior to any final determination of a Standard of Care by the Committee.”  The letters stated that the meeting would occur only “if you choose.”  The nurses were also given an opportunity to submit a written response in lieu of an appearance.

Both nurses asked to have union representation accompany them to the hearings. One nurse asked before the interview began; the other asked after the interview had started. These requests were denied.  The hearings proceeded with both nurses electing to participate.  After the hearing, the Committee found the nurses’ conduct was a violation of the standard of care but of a lower level than alleged and therefore the finding would not be reported to the Nursing Board.

The union filed charges over the refusal to allow union representatives to accompany the nurses.  (The union also alleged a failure on the part of the hospital to supply information requested by the union related to the investigation, as well as an allegation that an employer policy concerning confidentiality was overbroad but those are less interesting.)

Both ALJ and Board Find Violation In Denial Of Representation

The Administrative Law Judge and then the Board found the employer violated the law with respect to all three allegations.  As to the Weingarten allegation, the Board concluded that the nurses’ Weingarten right had been infringed because the denial occurred at the time of hearing, which the Board concluded gave rise to an obligation by the employer, “at that point to give the employees the opportunity to cease their participation in the meetings.” The employer appealed.

Court Disagrees with NLRB, Refuses Enforcement on the Weingarten issue

In analyzing the Weingarten issue, the appeals court turned to the Supreme Court’s decision and quoted the language as to the circumstances surrounding the right to union representation:

Weingarten affirmed the Board’s conclusion that it would be a ‘serious violation of the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy.’

The appeals court ruled that the right is “infringed” when the employee is compelled to testify.  Conversely, the court held, “absent compulsory attendance, the right to union representation does not arise:  the [Supreme] Court expressly grounded its decision” on the notion that the employer could carry on its investigation without interviewing the employee and “‘thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview.'”

The appeals court concluded that because the employer had stated in its letter that the employee could attend “if you choose” or submit a written response, attendance was not compulsory and Weingarten rights were not triggered

The court found there was no support for the Board’s reasoning.  The timing of the requests for representation, which were made contemporaneous with the interviews, was irrelevant.  The court, again reviewing the Weingarten decision, could find “no suggestion that the NLRA requires an employer to renew advice to an employee that her attendance at a hearing is optional.  And the Board cited no judicial or agency precedent establishing such a precedent.”

The court concluded its analysis by noting that the Board decisions relied upon by the agency were distinguishable because the employers in those cases compelled attendance in the interview.

Takeaways

This case is another example of the agency pushing the law by attempting to impose incremental changes, in this case adding the requirement that the employer’s initial advice that the meeting was optional be renewed when the request for union representation was made at the interview.  This case was easy for the court to decide because the language of Weingarten is clear in its requirement that the meeting be compelled in order to trigger the right to union representation.

The employer’s written advice helped avoid any dispute in this case.  Without the letter, whether the employee’s participation was optional would have been in dispute and the outcome of the case might have turned out differently.

Should an employer compel the interview?  There are good reasons not to.  It is frequently the advice that employers don’t compel an interview for the simple reason that one cannot sit an employee in a conference room and “sweat” them like they do on Law and Order.  Sure, the employer could punish an employee for refusing to participate but that gets farther way from the issue that led to the interview.  It is easier to give an option and tell the employee that the employer very much wants his/her participation but is prepared to make a decision without it.   If the employee chooses not to attend the employer will make a decision on the issue with the facts it has before it.  As the Supreme Court knew 42 years ago, many employees still will participate even without representation because the meeting often is the only opportunity to learn more about the issue and rebut claims.

Sometimes, parties to a collective bargaining agreement set forth Weingarten rights in the contract.  Since the right only applies in unionized settings it is a good idea to check the collective bargaining agreement to see if there are additional requirements agreed upon by the parties.  If the agreement is silent on Weingarten the employer should set internal guidelines about how to handle requests for representation to expedite the investigation and to minimize any problems.

Finally, because the rights afforded by Weingarten are still contested today, it is best to keep up on the law in this area.

Divided NLRB Rules Employer Policy Protecting Customer Information Is Lawful

Employers can prohibit the use by employees of the names, social security numbers and credit card numbers of customers in furtherance of organizational activities.  If this seems like it should have been a foregone conclusion, a recent case from the NLRB shows how the agency’s continued parsing of employer policies could easily have turned this notion on its head.

In Macy’s, Inc., 365 NLRB No. 116 (August 14, 2017) a number of the employer’s policies had been challenged as unlawful. Many of the policies were found to violate the Act.   The employer, an operator of department stores, chose to appeal only one aspect of its policies:  the Administrative Law Judge’s findings that the employer’s policies  prohibiting the use of customer information were unlawful.  The employer had three policies addressing use of customer information.

The first employer policy defined confidential information as follows:

What is confidential information?  It could be business or marketing plans, pricing strategies, financial performance before public disclosures, pending negotiations with business partners, information about employees, documents that show social security numbers or credit card numbers–in short any information, which if known outside the Company could harm the Company or its business partners customers or employees or allow someone to benefit from having this information before it is publicly known.

Just as our Company requires that its own confidential information be protected, our Company also requires that the confidential information and proprietary information of others be respected. . .

We are all trusted to maintain the confidentiality of such information and to ensure that the confidential information, whether verbal, written or electronic, is not disclosed except as specifically authorized.  Additionally, it must be used only for the legitimate business of the Company.

The Company also maintained a “USE OF PERSONAL DATA” policy:

The Company has certain personal data of its present and former associates, customers and vendors.  It respects the privacy of this data and is committed to handling this data responsibly and using it only as authorized for legitimate business purposes.

What is considered personal data?  It is information such as names, home and office contact information, social security numbers, driver’s license numbers, account numbers and other similar data.

The Use of Personal Data policy stated that employees must follow all “policies and measures adopted by the Company for the protection of such data from unauthorized use, disclosure or access.”

Finally, the Company maintained a “CONFIDENTIALITY AND ACCEPTABLE USE OF COMPANY SYSTEMS” policy:

Any information that is not generally available to the public that relates to the Company’s or the Company’s customers, employees, vendors, contractors, service providers, Systems etc., that you receive or which you are given access during your employment or while you are performing services for the Company is classified as ‘Confidential’ or ‘Internal Use Only.’

The employer’s Acceptable Use policy prohibited the sharing of such information with third parties.

The Charging Party union challenged these rules as unlawful, asserting that they would lead a “reasonable employee” to interpret them as prohibiting contact with customers during a labor dispute, something that is protected by the Act.  Complaint issued.

The Administrative Law Judge’s Decision

The Judge, after discussion of the policies in general, found the restrictions related to customers violated Section 8(a)(1), noting that the General Counsel “challenges the restrictions on the use of information regarding customers and vendors.  In certain situations, employees are permitted to use such information in furtherance of their protected concerted activities. . .”  There was little discussion of the actual language of the policies other than to note that it referenced “customer” information and that such information might include that used for purposes of protected activity.

Board Majority Sees It Differently

A two person majority (Chairman Miscimarra and Member McFerran) concluded the policies related to use of customer information were lawful.  The Board noted the policy identifying the information considered by the employer to be confidential “specifically defines” confidential information and the “only information covered by that rule that arguably relates to customers is ‘social security numbers or credit card numbers.'”  The Board noted that the General Counsel had conceded that employees do not have a right to use such information.  As to the Use of Personal Data an Acceptable Use of Company Systems restrictions, the Board held both rules “limit the use or disclosure of customer names and contact information”–information that could arguably be used in a labor dispute, but that “such rules “by their terms, only apply to customer names and contact information obtained from the [employer’s] own confidential records.”

The Board then cited the numerous cases holding that employees who use information taken from employer systems are outside the protection of the Act, including one where the employee had forwarded hundreds of company emails, some of which included confidential data, to a personal email account.

In a footnote, Chairman Miscimarra reiterated his call, set forth in prior cases as a dissent, that the test as to whether an employee would “reasonably construe” certain language to infringe on rights should be overruled and repudiated by the courts as unworkable.

Dissent Interprets Policies As Restrictive

Member Pearce dissented, stating employees “would reasonably interpret these broad rules as prohibiting or restricting their disclosure and use of customer information, for all purposes, including those that may implicate their terms and conditions of employment.”  The dissent argued what many employers asserted in defense of handbook policies,– that the majority was reading phrases of the policies “in isolation,” to come to its conclusion.  Specifically, the dissent noted that the definition of confidential information included “any information, which if known outside the Company could harm the Company….”  This phrase arguably isolates a few words while ignoring the more detailed definition preceding it.

Takeaways

This case is another example of how the standard of evaluating the lawfulness of language in a handbook can lead some very smart practitioners to come to widely disparate conclusions.  Here we have four seasoned labor professionals (an ALJ and three Board members) coming to different conclusions.  Indeed, the fact that the Chairman and Member McFerran were together in the majority is unusual enough (it’s probably happened on a case like this only a handful of times) to show that reasonable minds can and do differ as to the meaning of certain policies.  If these professionals cannot agree on what language constitutes a violation of the Act, then it certainly makes one wonder whether the “reasonable employee” who is envisioned in the standard would agree with any of the interpretations or hold a different view.    It seems likely the standard will be changed in the coming months as the make-up of the Board changes.

Until then, the drafting rules that have helped employers avoid problems of this sort remain in effect.  Tailor the policy to achieve the business objective.  In this case, the definition of confidential information was very specific, and narrow.  The types of information under the Use of Personal Data and Use of Company Systems policies were restricted, appropriately, to information that the employer collects as part of its business.

The case also offers an excellent recitation of all the instances where employee use of confidential information has been found to be unprotected.

NLRB Gains A New Member As Marvin E. Kaplan Is Sworn In

The NLRB announced today that Marvin E. Kaplan was sworn in as the agency’s newest Board member.  Member Kaplan’s term expires August 27, 2020.  The Board complement now stands at four of five members.  Congress delayed confirmation of the President’s other appointee, William Emanuel, until at least September.  Assuming Mr. Emanuel is confirmed when Congress returns the Board will have a full complement for the first time in several months.  Having five members may only last for approximately 90 days, however, as Chairman Miscimarra recently announced he would leave when his appointment expires in December 2017.  So we can expect another appointment to the Board sometime in the Fall.

There exists a great deal of interest on what is happening at the Board.  Changes to case law can only occur when a majority of the panel agrees and as of this moment there is the possibility of a 2-2 split over the many legal issues currently dividing the labor relations community.

NLRB’s Acted More Like “Advocate Than Adjudicator” In Issuing Decision, DC Court of Appeals Concludes

When bargaining over an agreement, it is common to hear union representatives ask “why do we need such elaborate language in an agreement?  We are always reasonable.”  To which, the company usually responds, “We think you’re nifty but the next person holding your job may not be as reasonable; better to have it in writing so there is no confusion.”  Clear contract language can solve a lot of issues but only if it is read and followed.  This is why it is sometimes perplexing and irksome that the NLRB will occasionally ignore clear contract language when deciding cases.

A federal appeals court has refused to enforcement of a Board decision finding an employer violated the Act when some union representatives were arrested for trespassing at a store in clear violation of the parties’ longstanding access agreements.  The court, calling the agency more of an “advocate than adjudicator” employed unusually strident language to criticize the Board’s decision.

In Fred Meyer Stores, Inc. v. NLRB, No. 15-1135 (D.C. Cir. August 1, 2017), the employer was faced with a situation that is all too common in labor relations,–a change in leadership at the local union representative level which brought with it more confrontational tactics, as well as a clear disregard of the parties’ agreement.

Background

The employer operates big box retail stores selling groceries and other items.  The employees of the employer have been represented by the union for over twenty years.  In connection with this relationship the parties had negotiated a detailed access provision in the collective bargaining agreement that expressly stated that when the union visits it “shall first contact the store manager” to notify the employer of the visit, and any contact between union representatives and employees should “not interfere with service nor unreasonably interrupt employees with the performance of their duties.”  The parties also had a written memorandum governing visits to the store, which is nothing if not emphatic:

Business agents have the right to talk BRIEFLY with employees on the floor, to tell those employees they are in the store, to introduce themselves, and to conduct BRIEF conversations as long as the employees are not unreasonably interrupted.  Such conversations should not occur in the presence of customers.

Business Representatives have the right to distribute fliers to employees on the floor AS LONG AS IT IS DONE QUICKLY. THE EMPLOYEES ARE NOT URGED TO STOP WHAT THEY ARE DOING TO READ THE MATERIALS AT THAT TIME AND FURTHER, THAT THE MATERIALS ARE NOT PASSED OUT IN THE PRESENCE OF CUSTOMERS.

Business agents have the right to distribute materials in the break room.  Lengthy conversations and discussions should always take place in the break room.

The parties agreed that the term “briefly” meant no longer than two minutes.  The practice of the parties up to the point of the case was that such visits were limited to two union representatives.

“But then things changed.”

When bargaining for a successor agreement began in 2008 the leadership of the union changed.  The new union president called in “reinforcements” from the International to “energize” the union’s efforts.  This resulted in groups of union representatives visiting the stores, not the agreed upon two.  As the union disregarded the access provisions the visits resulted in confrontations.  The employer developed a protocol to handle the confrontations which included reminding the union of the access policy, and in cases where there were violations of the access policy, asking the representatives to leave the store. If the representatives would not leave the police would be called.

We have a right “under Federal law”

In the showdown that would result in the charges, eight union representatives entered a store.  A dispute about access occurred with the employer asserting the visit had to be limited in accordance with the parties’ agreement.  One union representative asserted she had a right under “federal law” to “talk to employees as long as [she] wanted.”  The conversation grew more heated and the union representatives refused to talk about the access policy, bluntly stating “you do what you have to do and I’ll do what I have to do.”

The store manager was on the phone with loss prevention when a union representative got in his face and repeatedly called him a liar.  The store manager called the union representatives “jerks” and stated that unions were “outdated” and that paying union dues was “ridiculous.”  The police were called.  When the police told the union representatives to depart the store or face arrest, one union representative refused and was arrested.  The other representatives left the store.  Thereafter, one of the representatives tried to talk to the police about his “federal rights” and was informed by a police officer “another word and you’re done.”  Another word was uttered and that union representative was arrested.  Charges were filed with the Board over the arrests and the manager’s remarks.

NLRB Finds Violation

Against this backdrop, the NLRB found that the employer violated the Act “by limiting the agents’ right to contact store employees,” by “disparaging the union” and by threatening and causing the arrest of the union representatives.  The original Board decision was issued by a two member panel, which  was nullified by the Supreme Court.  The reconstituted Board reaffirmed its findings, but this time including a strong dissent by Board Member Johnson.  The employer appealed.

Court Refuses Enforcement, Has Harsh Words For NLRB

The Court began its analysis employers generally can prohibit labor organization activities by non-employee union representatives conducted on employer property.  Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (holding property rights generally prevail over the rights of non-employees when it comes to the NLRA).  Therefore “any right of the Union representatives to enter the Store . . must derive from the parties’ Access Agreement and past practice, not federal law.”  Under this legal authority, the “NLRB carries the burden to show the Union representatives were in compliance with the parties’ Access Agreement.”  The Court noted that under the facts in the record the union was in violation of the access agreement “the moment Union representatives walked through the doors to the Store without notifying management–at least 5 minutes before [the manager] first opened his mouth and long before anyone was arrested–they had become trespassers [the employer] could lawfully expel from the Store.”

The Court then examined the Board’s findings and its reasoning, and concluded that “the Board’s opinion is more disingenuous than dispositive; it evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence–disregarding entirely the need for reasoned decisionmaking.”  Specifically, the Court noted:

  • “[M]ost egregiously, the Board stated the ALJ had found ‘the parties did not have a clearly defined practice with regard to the number of union agents permitted to be in a store at any one time.'” Yet, the ALJ expressly stated he made no such finding.  The Court found this to be “pernicious” and went on to state, “The Board’s tone deafness–even after the dissent drew attention to the error–is the antithesis of reasoned decisionmaking.”
  • The Board concluded the employer’s manager declined the union representative’s offer to read the parties’ access policy.  The Court noted that even the ALJ could not conclude what was said during the confrontation as the union representatives and the manager were engaged in an “intense debate” and the ALJ “declined to determine precisely what occurred. . .”  The Court characterized this finding as “the product of unmoored supposition rather than reasoned decisionmaking.”

The Court remanded the issue of whether the union representatives’ actions were protected noting, “the Board –purposefully or absentmindedly–misrepresented several of the ALJ’s findings and failed to respond to key points raised by the dissent.”

Having essentially concluded that the union was trespassing and that the Board’s findings to the contrary were unsupported (to say the very least), the Court turned its attention to the arrests.  Here the Court recited the NLRB case law that employers are liable when arrests occur when there is a persistent effort to maintain and enforce unlawful policies and “thwart the protected organizational activities of the employees.”  The Court noted the Board adopted the ALJ’s finding that the “causation [was] linear” in that the manager summoned the police and arrests occurred.  The Court rejected this analysis as ignoring the Board’s own precedent and concluded that the “intervening illegal acts” of the union representatives broke the chain of causation.  Thus, the union representatives essentially failed to follow the officers’ directives and were arrested, not because the manager called the police.  Had the union representatives left the store when the police asked no one would have been arrested.  The Court stated the Board’s analysis amounted to the creation of a duty by the manager to prevent the arrests, which was unsupported by the law.

Finally, the Court noted the manager’s statements did not unlawfully disparage the union.  Here the Court cited the very language in its Board case law used to justify employee remarks:  “the Act countenances a significant degree of vituperative speech in the heat of labor relations.”  Under the circumstances, the remarks of the manager were directed at the representatives not employees and were uttered in the heat of the moment.  The Court concluded no violation occurred.

Takeaways

Once again, a Court has refused to enforce a Board order as unreasonable.  This case demonstrates the importance of having clear access language in a collective bargaining agreement.  While we have seen cases where the Board appears to ignore or minimize contract language it is still best to be as explicit as possible because courts like to see it. And, the Board itself is in transition and the law likely will change substantially.

The employer avoided liability in this case by being able to point to a clear written agreement to demonstrate that it was the union, not the employer, that was in the wrong.  Having clear access language also is invaluable in cases like this where union leadership changes and suddenly wants to become more “energized” in its dealings with the employer.

Employers always need to be careful about calling the police in response to protests.  Calling the police should be the last resort and only when all other options have been exhausted.  Even then, a manager should not press for arrest unless circumstances exist warranting it (like a clear disruption to business).  Employers also need to be careful about summoning the police for trespass and should review state law.  In some states, like California, this case might have turned out differently because state law grants access to union representatives to property that is otherwise open to the public.

 

Two Employees, Social Media, An Unlawful Policy. . .What Could Possibly Go Wrong?

The advent of social media resulted in a feverish effort by the NLRB to keep up with new technology.  In reality, the legal standard for evaluating whether conduct is protected concerted activity did not change.  Rather, all the excitement was over the fact employees were being punished for things they said on social media, which was surprising only because some people seemed to not realize that what is said online is just as good, or bad, as something you say in person. It appears many people still do not realize that what they write online can have real consequences. Those consequences were the subject of a recent NLRB case.

In Butler Medical Transport, LLC, 365 NLRB No. 117 (July 27, 2017) the NLRB evaluated two separate terminations of employees for comments made on Facebook.  The employer provided ambulance transportation services and its employees consisted of emergency medical technicians who drove ambulances.

The Social Media Policy

The employer maintained a social media policy which stated, in part, “I will refrain from using social media sights [sic] which could discredit Butler Medical Transport or damages [sic] its image.”  It is undisputed that this policy is overbroad and therefore unlawful under the NLRA.

Employee 1 – “You could go to the labor board too”

An employee who had been terminated by the employer posted remarks on Facebook about her termination.  The employee essentially complained that the circumstances of her termination were unfair because the employer had sided with a patient in a dispute.  A few employees commented.  Employee 1 posted the following comment:  “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”  Employee 1 followed up with the remark, “[Y]ou could contact the labor board too.”

An anonymous employee took a screenshot to this exchange and placed it on the Human Resource Manager’s desk.  Employee 1 was terminated for violating the social media policy.  He filed charges.

Employee 2 – “Hey everybody!!!!!

Employee 2 posted the following message on Facebook:  “Hey everybody!!!!! IM (sic) F*&KIN BROKE DOWN IN THE SAME SHIT I WAS BROKE IN LAST WEEK BECAUSE THEY DON’T WANTA BUY NEW SH#T!!!! CHA CHINNNGGGGGG–at Sheetz Convenience Store.”

As with Employee 1’s case, an anonymous source pushed a screenshot of this post underneath the Human Resource Manager’s door.  Employee 2 was terminated for violation of the social media policy.  He too filed charges with the NLRB.

The Board Decides Employee 1’s Termination Was Unlawful And Employee 2’s Termination Was Lawful

The Board found that Employee 1’s termination was unlawful in violation of Section 8(a)(1).  The Board found that Employee 1’s conduct was concerted activity because he “was engaged in a conversation with fellow employee’s regarding” the termination of an EMT and Employee 1 “advised [the terminated employee] about potential avenues of redress.”  The Board cited authority holding that giving such advice has been deemed to constitute protected activity.

The Board also found the purpose of Employee 1’s action satisfied the requirement that it be for “mutual aid and protection” because he “posted his comments as part of an online conversation with fellow employees, triggered by one employee’s complaint about what she believed was her unjust discharge–a potential concern for all employees, who have a common interest in job security and protection against such a dismissal.”  The Board found the termination for engaging in this activity a violation of Section 8(a)(1).

The Board addressed the alternate theory not addressed by the Administrative Law Judge that Employee 1’s discharge was unlawful because he was terminated pursuant to an overbroad policy.  As we have discussed many times, including here, it is a rare case where an employee is actually terminated or disciplined pursuant to an unlawful policy.  The Board applied Continental Group, Inc., 357 NLRB 409 (2011) which holds that an unlawfully overbroad rule may violate Section 8(a)(1) in two situations:  if the employee was disciplined for engaging either in protected activity or, for conduct that is not concerted, but “touches the concerns animating Section 7.”  The Board noted the employer can avoid liability by demonstrating that the employee’s conduct actually interfered with the employer’s operations and “that the interference, rather than the overbroad rule, was the reason for the discipline.”  The Board found that under either prong Employee 1’s discharge would be unlawful and that there was no evidence his activity interfered with operations.

The Board found Employee 2’s conduct was not protected.  Employee 2 did not testify for the General Counsel.  The employer subpoenaed him to testify and he refused citing his “fifth amendment rights” so the Judge and the Board did not have the benefit of hearing from Employee 2.  The evidence did disclose that Employee 2 explained the meaning of his Facebook post during his unemployment hearing and said he was driving his girlfriend’s car, not an ambulance.  If this was true, then the Board found the comment to be not protected at all because the mechanical efficiency of a girlfriend’s car is not a concern to other employees.  The employer also introduced service records showing that the ambulance driven by Employee 2 had never had repair problems.  If Employee 2 was driving an ambulance the day he posted his comments about it breaking down, the Board found this to be “maliciously false” and therefore not protected.  We have discussed this past standard recently in a case where a court of appeals criticized it as too exacting.

The Board also applied Continental Group to conclude that Employee 2’s termination was not unlawful under the overbroad policy because it was neither protected nor did it touch upon Section 7 activity.

Dissent Would Find Both Terminations Lawful

Chariman Miscimarra concurred in part (he agreed that Employee 2’s termination was lawful) but largely dissented arguing that the majority’s analysis of both Employee 1’s conduct and the application of Continental Group was in error.  The entire decision in this case, including Board, dissent and Administrative Law Judge’s opinion is 29 pages.  Chairman Miscimarra’s dissent weighs in at a healthy 15 pages and contains a good recitation of the law concerning protected concerted activity and the analysis of discipline taken pursuant to an unlawful policy.  To sum it up, the Chairman believed the analysis under Continental Group is contrary to the Act in that it was possible that an employee who was discharged for cause could be reinstated in violation of Section 10(c) of the Act which prohibits the Board from reinstating or paying backpay to an employee whose conduct otherwise constituted good cause.

Takeaways

This case is yet another reminder for employers to have all written policies reviewed for lawfulness under the Act.  Reviewing a policy for correct grammar and spelling also would not hurt.  It is almost certain the Board will change the standard in the coming months but scrutiny of policies will continue in some form.

The case also presents two fact patterns side by side which demonstrate good cause and bad cause to terminate an employee.  While there certainly is room to argue over whether Employee 1 was really acting in a concerted fashion when he offered unsolicited advice to the terminated employee to take her case to the “labor board,” such a conversation, even conducted virtually, must be seen as a high risk termination.  Employees have these kinds of conversations all the time.  When the conversation actually references the “labor board” it is hard to imagine the agency not taking issue with a termination suggesting that a case be brought to it.

The case also is another reminder to all who use social media:  we are all one step away from having a screenshot of our internet musings shoved under the door of Human Resources.

Employer’s Asking Employee “How Things Are Going?,” Prelude to Unlawful Solicitation of Grievances, Board Majority Rules

We are on the verge of the Board majority changing for the first time in approximately a decade. The President’s two appointees, if confirmed, will bring the Board up to a full five members.  After the new members are seated we likely will see big changes to the law.  In the meantime, the Board continues to issue decisions although it seems to have slowed down a bit in recent weeks.

Many of the Board decisions have to do with statements made by employers to employees which can be considered coercive.  In the last several years, the Board has carried its scrutiny  of employer statements to the extreme as it has evaluated written handbooks, often finding violations of various passages despite the lack of evidence that the policy was ever enforced or even that the employee was aware of it.  As we previously noted, it is highly likely the Board’s current standard for evaluating written policies will change in the coming months.

In Mek Arden, LLC dba Arden Post Acute Rehab, 365 NLRB No. 110 (July 25, 2017) the Board evaluated the interesting allegation of unlawful conduct known as “solicitation of grievances.”  Solicitation of grievances is one of the lesser known violations of the Act, and stands for the proposition that an employer violates the Act if, during union organizing, a supervisor attempts to find out what is driving the organizing and then, implicitly or explicitly, promises to remedy the problems.

Background

The employer ran a long-term care and rehabilitation facility in Sacramento, California.  The Certified Nursing Assistants (CNAs) working at the facility were the subject of an organizing drive which resulted in the union losing the representation election.  The union filed charges and asserted objections to the election.

“How are things going?”

Of the many allegations contained in the complaint, the one of most interest was the solicitation of grievances.  In mid-June of 2015 a CNA complained to an administrator about the new director of nursing.  The administrator relayed the complaints to the employer’s Chief Operations Officer (COO).  During a visit to the facility, the COO spoke to employees often asking them “how things are going?”  This question was asked of all employees encountered by the COO whether or not they were part of the employee group organizing.  The COO sought out the CNA who complained about the director of nursing because he had been told about the complaint.  The CNA was asked how things were going.  The CNA responded about some complaints in the workplace.  The COO then specifically asked about the director of nursing.  The CNA repeated her previous complaint and the COO stated he would “follow up and look into her concerns.”  Later that day, the employees, led by the CNA, presented the union’s election petition to facility management.

The union alleged the COO’s conversation with the CNA was an unlawful solicitation of grievances. The NLRB Region issued complaint on this claim and others.

Administrative Law Judge Dismisses Claim

The Administrative Law Judge evaluated the statement and noted that the COO asking the CNA how things were going was something that the COO “routinely” asked employees and that, under the circumstances, it was not unlawful because:

I find [the COO’s] reaction (to [the CNA’s] complaint) was a natural human response–with the alternative being to remain in an unnatural and bizarre stone silence in the face of such personally-conveyed complaint.  To rule otherwise in these circumstances would raise the specter of employees easily baiting or goading employers into committing automatic, ready-made unfair labor practices by raising unsolicited complaints and then claiming that the employers impliedly promised to resolve their grievances when they respond by stating they would ‘look’ into them.  Such is not the intent or purpose behind Section 8(a)(1) of the Act, which is to proscribe truly coercive conduct.

The General Counsel appealed this finding.

Board Majority – It’s Solicitation

In analyzing this allegation the Board found the judge’s analysis to be “flawed in several respects.”  The Board quoted the standard for evaluating a solicitation of grievance allegation set forth in Maple Grove Health Care Center, 330 NLRB 775, 775 (2000):

Absent a previous practice of doing so. . .the solicitation of grievances during an organizational campaign accompanied by a promise, express or implied, to remedy such grievances violates the Act. . . [I]t is the promise, express or implied, to remedy the grievance that constitutes the essence of the violation.  . . [T]he solicitation of grievances in the midst of a union campaign inherently constitutes an implied promise to remedy the grievances.  .  . [T]he inference that an employer is going to remedy the same when it solicits grievances in a preelection setting is a rebuttable one.

The Board noted that if the solicitation is made the employer can rebut the inference by establishing that it had a “past practice” of soliciting grievances in a like manner prior to the critical period.  The critical period is the period between the petition and election.

The Board found that the COO’s actions constituted solicitation because he sought out the CNA, and that after hearing her complaints told her he would follow up and look into her concerns.  The Board found it significant that there was no evidence the COO had visited the facility and asked employees “how are things going” prior to his visit.

Chairman Dissents

Chairman Miscimarra dissented, noting that the employee previously, and in an unsolicited manner, raised the complaint against the director of nursing.  Thus, it was hardly something that could be “solicited.”   Miscimarra agreed with the Judge’s analysis, finding the question “how are things going?” was not solicitation but “a familiar, commonplace greeting.”  Even if the question could be deemed a solicitation, Miscimarra concluded that the COO’s response that he would look into the complaint was a “natural human response” and not an implied promise to remedy a problem thereby conveying that unionization was unnecessary.

Takeaways

This is another example of an incremental expansion of the law.   The Board seems to be saying that even though the employee raised the issue voluntarily in a previous conversation that it would be unlawful to go talk to the employee about the complaint.  It is a natural, and good, business practice to relay complaints of employees to those in management who have the authority to address the issues.

The CNA clearly was not shy and had raised her complaints on her own to administrators.   It’s difficult to see the coercion.  It is especially hard to understand how this could be coercive when the CNA led the effort to publicly present the union’s petition to represent the employees shortly after her conversation with the COO.  If the conversation was so problematic it certainly did nothing to deter the CNA and her efforts to bring in the union.  Of course, the Board looks at employer statements objectively and does not consider whether the statement had its intended effect, which makes a certain amount of sense.  However, this practice tends to isolate the statements as if they occurred in a vacuum and it can lead to situations like this where the statement demonstrably did not deter the employee yet is still deemed “coercive.”  Indeed, as the Administrative Law Judge predicted, a non-coercive conversation is something that could be held onto and used to force a new election if the union did not prevail.  We have seen before how the Board does not hesitate to overturn election losses  based on little evidence of actual coercion.

This kind of thing can be avoided entirely, of course, by the establishment of well-defined programs to find out what is on employee’s minds, and to make a commitment to look into any problems.  That way, if and when organizing occurs, the employer can easily rebut a claim of solicitation of grievances.

It is not always natural for managers to ask “how are things going?” but it should  be.

Attack Falsely Alleging Sandwich Maker Engaged In Unhealthy Practices Not Protected Activity Concludes Appeals Court, Overruling NLRB

Labor disputes are passionate affairs.  Workplace grievances elicit all sorts of strident behavior. When the dispute involves a group of employees, the effect can become magnified.  The exact point at which the stridency of an employee’s behavior becomes unprotected is not always apparent, and like so much else in labor relations, the line changes with the Board’s make-up.  Sometimes the employee’s actions are clearly unprotected as we saw in the recent cases involving the errant human resources representative and in the case of the excitable nurse.  Many times the activity is clearly protected even when it is insulting or profane.  Moreover, the Board is given a high degree of deference by the reviewing courts and it is unusual to see a Board order reversed.

Recently, however, the United States Court of Appeals for the Eighth Circuit denied enforcement of a Board order concerning, among other things, the discharge of employees engaged in a labor dispute with their sandwich maker employer.  Concluding that “the means the disciplined employees used in their . . . attack were so disloyal as to exceed their right to engage in concerted protected activities,” the Court refused to enforce the Board’s order of reinstatement and backpay.  Miklin Enterprises, Inc. DBA Jimmy John’s v. NLRB, No. 14-3099 (8th Cir. July 3, 2017)

It All Started With An Organizing Drive

Employees working at ten Minneapolis area sandwich stores began an organizing drive sponsored by the International Workers of the World (“IWW”).  For those students of labor relations, the IWW has an interesting and colorful history.  An election was held and the union lost.  Objections were filed.  The employer and the IWW settled the case in a manner which would allow for a rerun election within 18 months if the union desired.

A major focus of the organizing was the lack of paid sick days.  The employer had a policy in place which required employees to find their own replacement if they were going to be sick or be subject to termination.

Union Attacks During Flu Season

Sensing an opportunity to highlight the push for paid sick time, the IWW and its supporters used the onset of flu season to pressure the employer.  In late January 2011 the union began  an attack on the employer by creating a poster which contained two identical images of a sandwich.  Above the first image were the words, “YOUR SANDWICH MADE BY A HEALTHY JIMMY JOHN’S WORKER.”  Above the second image, “YOUR SANDWICH MADE BY A SICK JIMMY JOHN’S WORKER.”  At the bottom of the poster contained the text:  “CAN’T TELL THE DIFFERENCE?  THAT’S TOO BAD BECAUSE JIMMY JOHN’S WORKERS DON’T GET PAID SICK DAYS.  SHOOT, WE CAN’T EVEN CALL IN SICK.  WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU’RE ABOUT TO TAKE THE SANDWICH TEST.”  [A copy of the actual flyer is attached to the last page of the decision]

The union distributed the poster, a press release and a letter to more than one hundred media contacts, including local newspapers and national news outlets.

The press release stated, “As flu season continues the sandwich makers at this 10-store franchise are sick and tired of putting their health and the health of their customers at risk.”  The press release threatened that if the owners did not meet with IWW supporters about their demands for paid sick leave the supporters would take “dramatic action” by “plastering the city with thousands of Sick Day posters.”

The letter that accompanied the press release contained similar language threatening to put the poster all over the city.  The letter also stated, “By working sick, we are jeopardizing the entirety of [the company’s] image and risking public safety.”

The owner of the franchise met with the IWW supporters and stated the attendance policy was being revised.  The IWW warned that if its demands were not met within ten days the posters would be displayed throughout the area.  The employer revised the attendance policy, which apparently wasn’t good enough for the IWW supporters who then implemented their threat to plaster the city with the posters.

The employer fired six employees who engaged in the attack and issued warnings to three others who assisted.  The attack continued after the discharges with the IWW issuing another press release asserting “It just isn’t safe–customers are getting their sandwiches made by people with the flu and they have no idea. . .” and the “unfettered greed of [the owner]. . .jeopardizes the health of thousands of customers and workesrs almost every day.”

The employer had been cited by the health department only twice, years prior to the dispute, for unrelated issues.

NLRB Decides Employee Actions Protected

A two member majority of the Board concluded “that neither the posters nor the press release were shown to be so disloyal, reckless or maliciously untrue to lose the Act’s protection.”  Noting that the Board has developed “considerably” its approach to evaluation of employee disloyalty, the Board held that “an employee’s public criticism of an employer must evidence a malicious motive” in order to lose the Act’s protection.  One member of the Board dissented.

Full Appeals Court Overrules Board

A divided panel of the Court originally enforced the Board’s order.  The employer appealed to the full court and a ten judge panel heard the case voting 8 to 2 to overrule the Board.

The Court acknowledged that employees have a protected right to communicate with third parties about their dispute.  The Court noted that this protection was limited by Section 10(c) of the Act which states, “No order of the Board shall require the reinstatement of any individual as an employee . . .if such individual or employee was discharged for cause.”  29 U.S.C. § 160(c).

The Court then evaluated the Supreme Court’s decision in NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464 (1953) (known in the labor world as “Jefferson Standard” after the employer).  In Jefferson Standard, the Supreme Court upheld the Board’s decision that the firing of technicians at a television station was lawful because their actions were unprotected.  When bargaining with the union had failed the technicians distributed handbills criticizing the quality and poor programming.  The Board found the actions unprotected because “the gist” of the actions “was that the employer ought to be boycotted because he offered a shoddy product” not because the employer was “unfair” to the employees.”  94 NLRB 1507, 1511.  The Supreme Court, upholding the Board’s ruling these actions were unprotected, decided the case on broader grounds noting that there “is no more elemental cause for discharge of an employee than disloyalty to his employer.”

The Court next evaluated the Board law construing Jefferson Standard.  The Court noted that, “while always purporting to apply Jefferson Standard’s holding, the Board has migrated to a severely constrained interpretation of that decision” which requires that there must exist “evidence of a malicious motive.”  The Court ruled this interpretation “fundamentally misconstrued” Jefferson Standard.  First, “[b]y holding that no act of employee disparagement is unprotected disloyalty unless it is ‘maliciously motivated to harm the employer,’ the Board has not interpreted Jefferson Standard — it has overruled it.”  Second, the Board “refuses to treat as ‘disloyal’ any public communication intended to advance employees’ aims in a labor dispute, regardless of the manner in which, and the extent to which, it harms the employer.”

The Court concluded the Board’s test was an error of law because it effectively removed from the inquiry the central Section 10(c) limitation as defined by the Supreme Court — “whether the means used reflect indefensible employee disloyalty.”  Rather, the correct inquiry is “whether the communication reasonably targeted the employer’s labor practices, or indefensibly disparaged the quality of the employer’s product or services.”

Conclusion and Takeaways

The NLRB rarely cares what an appellate court says and usually just limits a court’s holding as “law of the case.”  However, as we are on the eve of a new Board (the two appointees are set for confirmation later this week), this case might be fodder for a change in the standard requiring “evidence of malicious intent” which is so high as to be nearly impossible to reach.

This case is useful regardless.  It is a good reminder of how standards change with the Board over time, where disparagement of television programming in the 1950’s can be unprotected but a despicable attack on the employer’s public health policies in 2011 is not.  The decision provides an excellent analysis of the interplay between the Act, the Board and the Supreme Court.  It also collects and analyzes the Board’s rulings in this area of the law and can be a good resource and citation.

 

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